It didn't help the Democrats when the President put his foot into it and squished it around. At a press conference last week he declared, "Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Bear in mind that Obama's fans love to point out that he's a Constitutional scholar! He's so smart! He knows his stuff better than the stoopid Tea Party! So it's hard to understand how a Constitutional scholar could say something so amazingly stupid. Damage control ensued, especially when a 5th District federal appeals judge in Texas ordered a lawyer arguing another health insurance case to submit "a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president, stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review." Attorney General Eric Holder complied, essentially conceding that judicial review is neither unprecedented nor extraordinary.
I'm not concerned that Obama is trying to interfere with or even threaten the Supreme Court, as many of his partisan critics have claimed. My objection is that he was wrong, and since he can hardly be accused of ignorance about the Constitution and the role of the Supreme Court, he was either lying or stupid. (Or both -- I am not bound by your narrow Western binaries.) As the Washington Post reported,
But the White House was forced to defend the assertion that overturning the health-care law would be unprecedented. According to the Congressional Research Service, the court through 2010 had ruled 165 times that laws passed by Congress were unconstitutional.Obama himself agreed with some of those decisions, including 2008’s Boumediene v. Bush, in which the court ruled 5-4 that the Military Commissions Act’s suspension of the right of habeas corpus for Guantanamo Bay detainees was unconstitutional.And Wednesday, the administration was in court in Boston explaining why it thinks the Defense of Marriage Act is unconstitutional, although it was passed by bipartisan majorities and signed by a Democratic president.
That may very well be what the Great Communicator and eloquent Not-Bush orator President Obama meant; but it's not what he said. (Not surprisingly, his apologists have followed the party line and ignored what he said in favor of his excuses.) What he said was so wrong-headed that even his Harvard mentor Lawrence Tribe called him out on it.
“Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation,” said Harvard Law professor Laurence Tribe, a close Obama ally. “Even if such comments won’t affect the justices a bit, they can contribute to an atmosphere of public cynicism that I know this president laments.”Since we ordinary middle-class Americans can only sit at home while our Shield Against the Cossacks is watching out for our interests in the Oval Office, it's especially worrisome (and it contributes to that "atmosphere of public cynicism") that our advocate is so bad at his job. From his inability (or disinclination) to bargain effectively with the Republicans on his stimulus program, allowing them to put in counterproductive tax cuts, to caving in (or selling out) to the health insurance industry on the public option, to reassuring Wall Street bankers that he was on their side against the public that wanted their heads on a pike, to putting Social Security and Medicare on the chopping block during the budget negotiations, to ... well, this little incident, President Obama has made many of us feel less safe against Republican depredations.
